THE MYTH OF PRIVACY

The Indian Legal System

As per my experience, the first perception that people tend to make towards the field of law is that the Courts are merely the moderators in the dispute between the two or more parties. However, this perception seems to be undergoing a tangential change with the recent wave of judicial activism that India. A catena of judgments are now addressing some of the most significant issues that the society has been facing for a very long time now; be it the right of the women to enter the Sabarimala Temple, the right to love the person of choice, inclusion of the Chief Justice’s office within the ambit of the RTI Act, the controversial Ayodhya matter, or the inclusion of the Right to Privacy as a fundamental right under Article 21. 

With the petition filed by the 90-year-old Retd. Justice K.S. Puttaswamy, the Indian jurisprudence is currently facing a massive shift towards a better future, as we speak. This has also sparked a number of debates regarding the monopoly of not only the Government but also the private corporations over our personal and sensitive information. But before indulging in these debates, it is essential to look into the scope of this right that has been vested in the citizens as a Fundamental Right in practice. 

Privacy Regime in India

Privacy, besides its colloquial understanding, includes a state of being free from public attention to intrusion or interference with one’s acts or decisions, which allows every individual to perform his actions in private. In fact, this factor has also been a part of our jurisprudence for a long time, like the exemption of the pardanashin lady from appearing in the Court under the Code of Civil Procedure under Section 132. Privacy is considered to be as inalienable as the right to perform any constitutionally permissible act. However, it is not an absolute right and can be curtailed per the procedure established by law. The State can limit the exercise of the Right to Privacy through reasonable restrictions, which have to qualify the two tests thus established- the test of Reasonable Expectation of Privacy and the Proportionality test. While the former looks into the previous expectation of the individuals of preserving their privacy, and the reasonableness of such an expectation, the latter test looks into the Legitimate State Aim due to which this right is to be curtailed by the State action. 

These two tests specifically came into massive public discussion due to the decision of our Government last year to allow 10 of its intelligence agencies to intercept, monitor and decrypt any information held by any citizen, by virtue of its power conferred under Section Section 69(1) of the Information Technology Act, 2000 read with Rule 4 of the Information Technology (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009. In practicality, this has given the Government an enormous amount of unchecked power, which if not exercised within its bounds, may lead to a constitutional crisis similar to that experienced during the 1975 emergency. 

Violating Principles of Natural Justice

Natural justice entails the principles of natural justice, natural law, and equity. The objective of these principles is to establish a procedure free from all forms of bias while giving the parties an equal chance of hearing; and in the said procedure, the Courts of law pass an informed and reasonable decision (including speaking order) to the said parties.

The information, under the said Rules, can be intercepted, monitored or decoded by the Competent Authority [Rule 2(d)], which constitutes of the Executive wing of the government, both at the State and the Central Government, as the case may be. The problem arises when the said orders of this competent authority are also scrutinized by the Review Committee, constituted by the executive wing itself, thus ensuring absolutely no accountability of this ‘certified intrusion’ upon the Fundamental Right to Privacy ensured to its citizens. This is a clear violation of the Principles of Natural Justice, specifically nemo judex in causa sua (no one should be a judge in his own case); while there is also no guarantee of the reasonableness of the certification of the said order, violating the principle of speaking order. Again, there is no provision under this Regime to give notice to its citizens post the surveillance upon them has been completed, contrary to the system established in the United Kingdom. This way, even if a surveillance has been done over an individual and no incriminating material could be found against the same, the individual is made aware of the actions taken against him, and thus providing him with an opportunity to speak in his defence, thus violating his right to be heard, i.e. audi alteram partem (right to be heard). 

The biggest intrusion upon the rights of these individuals is that the information that has been put within the ambit of the abovementioned agencies, includes not only data, messages, sounds, voices, and codes, but also the same over the cell phones and personal digital assistants in it. Therefore, what the citizens maybe speak about within the four walls of their homes, with their family members, close affinities or even in soliloquy can be used against them by the Government, through an unchecked regime; and as this system thus established is constituted by the executive, the individuals are also relinquished of their right to appeal against the actions of the said agencies (similar to the NRC). Essentially, this regime is not only unaccountable but also highly unconstitutional in so many ways, explicitly violating the right to privacy that has been ensured to the citizens of this country as a Fundamental Right under the Right to Life. This is when we, as citizens, must ask ourselves: was Srikant in the web series Family Man right when he said that “in India, democracy and privacy are only matters of myths and illusions.”?

Hope

The Constitutional Courts of India have been the torch-bearer of our hope. Recently the Bombay High Court ruled that evidence collected in violation of the Fundamental Right to Privacy is not only non-admissible in India, but also needs to be deleted from the State Records. But since it has been rendered by a High Court, it is not binding on other states as of now. 

While the data may not be used in trials but what are the checks on the government which is not constitutionally permitted to conduct mass surveillance in the first place? There is a need for education, sensitization and public discourse on Privacy. It seems too far-fetched to expect the government to bring a change. Until society awakens from its slumber to claim its precious rights, we hope that the informed and public-spirited citizens and organization will keep knocking at the doors of the Court for protecting our rights.

“Remember, Hope is a good thing, maybe the best of things, and no good thing ever dies.”

Authored By: Meerika Bareja, 4th Year Learner and Member Moot Court Society, Symbiosis Law School, NOIDA.

For any further queries, the author may be reached at contegohumanitas@gmail.com.